Lucas & Tait (Sales) Pty Ltd v Shoalhaven City Council [2003] NSWLEC 367

> Land and Environment Court of New South Wales

CITATION : Lucas & Tait (Sales) Pty Ltd v Shoalhaven City Council [2003] NSWLEC 367 APPLICANT Lucas & Tait (Sales) Pty Ltd PARTIES : RESPONDENT Shoalhaven City Council FILE NUMBER(S) : 10389 of 1999 CORAM: Moore C Development Application :- KEY ISSUES: Proposed consent orders Bushfire issues LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 5 November 2003 EX TEMPORE JUDGMENT DATE : 11/05/2003

APPLICANT Ms P Hollott, solicitor Minter Ellison

LEGAL REPRESENTATIVES: RESPONDENT Ms A Pearman, barrister INSTRUCTED BY Morton & Harris

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10389 of 1999

Moore C

5 November 2003 Lucas &Tait (Sales) Pty Ltd Applicant v Shoalhaven City Council Respondent Judgment 1 The matter that comes before the Court is a proposed nine lot community title subdivision at Suncrest Avenue, Sussex Inlet. There is a long planning history associated with the matter that it is not necessary to traverse, suffice it to say that the matter that is presently before the Court is a significantly lesser proposal than other matters that have the subject of a long dialogue between the applicant and the respondent council over many years. 2 Proceedings in this matter were commenced in this Court in 1999 and, as a consequence of ongoing discussions, the council and the applicant now come before the Court with proposed consent orders. There, however, remains one objector to the proposal, a Ms V Douglas of 110 Suncrest Avenue, Sussex Inlet. Ms Douglas had initially intended to give evidence in these proceedings but, for reasons of ill health, has been unable to attend Court to do so. 3 An affidavit of Mr Grant Gleeson, solicitor, of 88 Kinghorne Street, Nowra, was read by Ms Pearman for the respondent council which affidavit deposed, inter alia, that he had advised Ms Douglas that if she wished to put further material to the Court today she would need to instruct a solicitor or barrister to attend on her behalf. When that affidavit was read, I expressed my concern that it would and should have been possible for Ms Douglas to put further written material to the Court without the difficulty or expense of legal representation. An adjournment was granted to permit the council to contact her to see if she wished to do so. She subsequently advised that she did wish to do so and a supplementary submission was received by the Court via facsimile through Ms Pearman's chambers. 4 In addition, concerns arose as to the status of the material proposed to be put on behalf of the respondent counsel by Ms Kerry Rorke, and a further adjournment was granted to enable evidence as to her qualifications and understanding of the Expert Witness Practice Direction to be obtained in order that her evidence might be considered as expert evidence, as it canvassed the technical matters raised by Ms Douglas's objections. 5 Ms Pearman read a further affidavit of Mr Gleeson that sets out the qualifications and expertise of Ms Rorke, together with her understanding and awareness of, and being bound by, the Expert Witness Practice Direction. I am satisfied that under all the circumstances Ms Rorke's statement is appropriate to be considered as expert evidence in response to a wide range of issues, including the issues specifically raised by Ms Douglas in her objections. 6 Ms Douglas's objection are first raised in a letter of 17 September 2003, which is appendix 8 to the statement of evidence of Ms Rorke. Ms Rorke canvasses each of the matters in short that are raised by Ms Douglas, and she does so at pars 9.1 to 9.8 of her statement of evidence. 7 With respect to the objections to the development from Ms Douglas in her original submission, they are summarised accurately by Ms Rorke at 9.1, with one exception. The matters that are included in the summary are increased traffic in Suncrest Avenue and safety risks; problems with the sewerage system; loss of view of the bushland; loss of wildlife; impact on the SEPP 14 wetlands and bushfire risk. The one matter that is not listed by Ms Rorke is Ms Douglas's concerns as to the ability for the provision of telephone services to the allotment, which, although not a substantial issue ordinarily in proceedings of this nature, I note is dealt with by condition 3B of the proposed conditions of consent, which would require the provision of a telephone service to each allotment. If such service was not able to be provided then the applicant would be unable to proceed with the development or would be required to further approach the council or the Court for modification of the consent in that regard. 8 With respect to the issue of increased traffic in Suncrest Avenue, it is Ms Rorke's evidence that there is not likely to be a significant impact, that it is in within a 50 km per hour road network, and that there are adequate site distances in conformity with Roads and Traffic Authority guidelines. I am satisfied on her expert evidence that there is no basis on traffic grounds to object to the proposed development. 9 Similarly, with respect to the capacity of the sewerage system, it is Ms Rorke's expert evidence that there is capacity within the local sewerage system and there is no basis therefore to reject – absent any formal expert evidence to the contrary. 10 Loss of view of bushland is acknowledged by Ms Rorke but she notes that the proposed subdivision and residential development is permissible within the zone. I note that the general building envelopes have been designated and are proposed to be required as to be observed as part of the conditions through a public positive covenant. However, there will be substantial removal of the bushland and that is a necessary consequence of any dwelling being constructed anywhere on that site for reasons of fire protection. In this regard, even though there might well be some loss of amenity for Ms Douglas, the requirements for vegetation removal dictated by the necessity for appropriate fire protection measures on the site renders the removal of the bushland on that ground necessary. 11 Its ecological impact is a matter that is also appropriate to be considered, and I will return to that later in the context of Ms Douglas's supplementary submission. Her supplementary submission effectively deals with the issue of flora and fauna impact; the issue of the provision of a buffer strip to the SEPP 14 wetland and to the retention of the Sydney Coastal Estuary Swamp Forest Complex in the region. She specifically refers in her letter transmitted by facsimile today to pars 3.6 and 9.7 of Ms Rorke's statement of evidence. 12 With respect to the SEPP 14 wetlands, I have had tendered a number of reports prepared by Mr Kevin Mills of Kevin Mills and Associates, Ecological and Environmental Consultants. As they are not prepared for proceedings in this Court but were prepared for the information of the council, they are not strictly in the form required for expert evidence; however, they are generally in conformity with what would be required and certainly set out expert material. Mr Mills is known to the Court as an appropriately qualified expert in these areas. 13 Mr Mills, for his most recent report dated August 2003, has undertaken a mapping exercise of the SEPP 14 wetlands for the purposes of delineating them on land owned by the applicant at Sussex Inlet. The land has had added to it a dedicated 30 m wide buffer area along the defined wetland edge in order to provide protection for the wetland area, and Mr Mills expresses the opinion that such a buffer area is appropriate and will effect protection of the wetland. 14 Absent any expert evidence to the contrary, I accept the evidence of Mr Mills. Whilst I understand and appreciate the concerns that are expressed by Ms Douglas and indeed are reinforced by a letter from Councillor Jane Bange which is addressed to me in these proceedings – although not formally tendered, it is available to me pursuant to the wide powers that I have to inform myself on relevant matters. It reinforces the concerns expressed by Ms Douglas but takes the matter no further in terms of rebuttal of Mr Mills's statement of evidence. I therefore conclude, Mr Mills having undertaken an eight part test and reaching the conclusion that there is no particular inhibition to the subdivision on these grounds, that there is no basis to refuse it. 15 Mr Mills also dealt with the issue of Sydney Coastal Estuary Swamp Forest, and he did so at page 13 of his May 2003 report. With respect to the evidence of Ms Rorke on this matter, this is contained in par 9.5 of her statement of evidence – it reads: 'There are no threatened species found on the site that are likely to be impacted by the proposed development. The loss of 1.5 ha of disturbed vegetation is not likely to have a significant impact on wildlife movement or habitat within the area.' 16 The only matter that is of significance arising out of that is her evidence that the vegetation on the site is disturbed. It was Mr Mills's conclusion in the May 2003 report that further studies were required as to the possible impact on the Sydney Coastal Estuary Swamp Forest, which is an endangered ecological community listed under the Threatened Species Conservation Act, and that, absent such further study, a species impact statement would be required. 17 Mr Mills was commissioned by the applicant to provide a supplementary study on this issue, and he did so in June 2003. At p 7 he reached a conclusion relating to an eight part test that he had undertaken with respect to the Sydney Coastal Estuary Swamp Forest and as a consequence he concluded that the proposed subdivision would not result in any significant effect on the community within the region and that a species impact statement was therefore not required. He gave as his reasons for doing so: